In Pursuit of Equality: Bringing Human Dignity to the Forefront of Section 15. Christina Malezis. A thesis submitted to the Department of Philosophy

Transcription

1 In Pursuit of Equality: Bringing Human Dignity to the Forefront of Section 15 by Christina Malezis A thesis submitted to the Department of Philosophy In conformity with the requirements for the degree of Masters of Arts Queen s University Kingston, Ontario, Canada September 2012 Copyright Christina Malezis, 2012

2 ABSTRACT While it is clear that section 15 of the Charter of Rights and Freedoms should be read as prohibiting only of those violations of equality that amount to discrimination, it remains unclear how to determine what it means for a state to treat its citizens as equals, and more specifically, what constitutes discrimination. Thus, the idea of human dignity in section 15 the Charter has been, in many ways, groundbreaking in its recognition of the far-reaching impact of unequal treatment. There remains, however much scholarly dissension surrounding the concept s meaning and use within section 15 equality jurisprudence. As a result, many have argued that the concept suffers from ambiguity and indeterminacy, thus creating an additional burden on equality claimants. This work advances the thesis that the concept of human dignity, understood in the objective sense as autonomy and self-determination, explains the nature and scope of the government s obligation to show equal concern and respect, and offers us valuable guidance as to why certain types of unequal treatment are unfair and illegitimate. The concept can, I believe, help to delineate how equality is to be conceived, specified and realised under section 15 of the Charter. To make my case, I reject and show as flawed the Supreme Court of Canada s interpretation and use of dignity in section 15(1) jurisprudence. Finally, in an attempt to demonstrate that the concept of dignity is relevant and necessary to an analysis of discrimination, I show that such a concept is in fact grounded in Sophia Moreau s own illuminating account of the wrongs of unequal treatment. ii

3 Acknowledgments First and foremost, I wish to extend my utmost appreciation and gratitude to Christine Sypnowich for her guidance and supervision in this project. I am indebted to her insightful comments and questions; any shortcomings of this work are entirely my own. Christine s kindness and mentorship have been invaluable to me and her own work on human flourishing has greatly influenced this piece. I thank Will Kymlicka for his incisive questions and comments on an earlier draft of this paper and Beverley Baines for her contributions and gracious participation in this project. I thank Kerri A. Froc for inspiring me to write about human dignity with her most enlightening class on section 15 of the Charter. I thank Katerina Malezis and Bradley J. Vanderkam for their endless encouragement, coaxing support, and confidence in me. I also thank Lana De Gasperis for her intellectual and emotional friendship. Above all, I thank my parents, for without their unwavering love and support, I would not be where I am today. iii

4 Table of Contents I. Introduction...1 I.1.1. Section 15: The Groundwork...3 I.1.2. The Context of Equality Claims...7 I.1.3. Conclusion...9 II. Human Dignity and Section 15 of the Charter...10 II.1.1. Dignity and Equality Rights..11 II.1.2. Philosophical Foundations of Human Dignity...12 II Dignity Grounded in Rights..14 II Dignity Grounded in Status...15 II Dignity Grounded in Emotion...16 II.1.3. Dignity and the Law test 17 II.1.4. Problems with Dignity in Law: An Emotions Grounding Account...21 II.1.5. A Way Forward for the Concept of Human Dignity...25 II.1.6. Conclusion...33 III. IV. The Role of Human Dignity in Conceptualizing the Wrongs of Unequal Treatment 34 III.1.1. The Wrongs of Unequal Treatment III Stereotype and Prejudice...35 III The Perpetuation of Oppressive Power Relations.39 III Denial of Goods.40 III Diminishing Self-Worth.43 III.1.2. Room For Human Dignity?...44 III.1.3. How Unfair Differential Treatment Can Be Explained as Harmful to Human Dignity..47 III Stereotype and Prejudice...48 III The Perpetuation of Oppressive Power Relations.51 III Denial of Basic Goods...52 III Diminishing Self-Worth 56 III.1.4. Conclusion.57 Objections V. Conclusion..62 Bibliography...64 iv

5 I. Introduction No government is legitimate that does not show equal concern for the fate of all those citizens over whom it claims dominion and from whom it claims allegiance. Equal concern is the sovereign virtue of political community. 1 Section 15(1) of the Charter of Rights and Freedoms guarantees equality, but its precise formulation is restricted to the prohibition of discrimination, on such grounds as race, national or ethnic origin, color, religion, sex, age or mental or physical disability. Thus, it is clear that section 15 should be read as prohibiting only those violations of equality that amount to discrimination. But how do we determine what it means for a state to treat its citizens as equals and, more specifically, what constitutes discrimination? The idea of discrimination involves a normative assessment that certain instances of unequal treatment are unfair. We might ask then, when unequal treatment is unfair, what makes it so? Likewise, how can we delineate the wrong done to individuals when they are treated unfairly and unequally by the state? These are the sorts of questions that the Supreme Court of Canada has struggled with when interpreting the equality rights of section 15. These questions have also preoccupied philosophers who have analysed the reasons we have for valuing justice and equality and the different ways we can conceptualize the wrong done to individuals when the state does not treat them as equals. Specifically, philosophers have been concerned with inequalities in the distribution of benefits and burdens in society, with political or social power, and with institutional structures that stigmatize, marginalize, and oppress individuals. The latter question is of 1 Dworkin, Ronald, Sovereign Virtue: The Theory and Practice of Equality (Cambridge: Harvard University Press, 2000) [Hereinafter Sovereign Virtue], at 1.

6 particular relevance to Canadian equality jurisprudence, as the Supreme Court of Canada has construed and employed the protection offered by section 15 of the Charter as those forms of unequal treatment that deprive some of a benefit available to others in circumstances where this treatment is unfair. 2 To be sure, no plausible account of equality maintains that what is objectionable about unequal treatment is the mere fact that some individuals end up with more or less than others, but rather that unequal treatment is objectionable when this treatment is said to be unfair. While there has been vigorous philosophical debate about the meaning of equality, until recently there has been little work done in attempting to marry philosophical and jurisprudential fields into a more fully developed and refined account of equality. This project seeks to contribute to current efforts to bridge the gap between the theory and practice of equality. The philosophical literature on equality, I believe, can help shed light on the question: what constitutes discrimination? We can learn from some of the conceptual distinctions that have been drawn in the philosophical literature between the various ways of understanding the wrongs that are done to individuals when the state unfairly treats them unequally and particularly from the philosophical ideal of human dignity. In what follows, I will argue that the concept of human dignity, as understood in the objective sense as autonomy and self-determination, explains the nature and scope of the government s obligation to show equal concern and respect, and offers us valuable guidance as to why certain types of unequal treatment are unfair and illegitimate. Indeed, as I will suggest, questions of human dignity are central to questions of equality. As such, 2 See: Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143, at para 35; Moreau, Sophia, The Wrongs of Unequal Treatment in Fay Faraday, Margaret Denike, and M. Kate Stephenson, eds. Making Equality Rights Real: Securing Substantive Equality under the Charter (Toronto: Irwin Law, 2006) p 4. 2

7 the concept can, I believe, help delineate how equality is to be conceived, specified, and realised under section 15 of the Charter. To substantiate my thesis I will (a) reject and show as flawed, the Supreme Court of Canada s interpretation and use of dignity; and (b) reject Sophia Moreau s critique of dignity and show that her account of the wrongs of unequal treatment is in fact grounded in an understanding of dignity. Indeed, without the concept of human dignity, it is not clear that we have any handle on what human interest underlies the right to equality, nor are we likely to do little more than correct glaring deviations from the terms of statutory rules themselves unless we put the interest in dignity at the forefront. The body of the argument of this project is laid out in two chapters. In Chapter II, I outline and criticize the Supreme Court of Canada s interpretation and use of the concept of human dignity and advance my own account of the ideal, one that I believe escapes the criticisms mounted against it. In Chapter III, I focus in on Sophia Moreau whose recent work attempts to conceptualize the wrongs done to individuals when the state treats them unfairly and unequally. I argue that the concept of dignity is relevant and necessary to an analysis of discrimination by demonstrating that an account of dignity is grounded in Moreau s own illuminating account of the wrongs of unequal treatment. But first, it is necessary to set the stage by taking a closer look at section 15(1) of the Charter: its purpose, use and context as interpreted by the Supreme Court of Canada Section 15: The Groundwork Section 15 of the Charter of Rights and Freedoms sets out the following: 15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic 3

8 origin, color, religion, sex, age or mental or physical disability. 3 (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 4 Section 15(1) of the Charter provides for every individual a guarantee of equality before and under the law, as well as the equal protection and equal benefit of the law without discrimination. This is not a general guarantee of equality; it does not provide for equality between individuals or groups within society in a general or abstract sense, nor does it impose on individuals or groups an obligation to accord equal treatment to others. It is rather concerned with the formulation and application of the law. The promotion of equality under section 15 of the Charter entails the promotion of a society in which all are secure in the knowledge that they are recognized by the law as human beings equally deserving of concern, respect, and consideration. Beyond this, however, the Charter itself provides no guidance as to what it means for the government to treat its citizens as equals, nor what constitutes discrimination in breach of section 15. Thus, with the enactment of the Charter in 1982, the Supreme Court of Canada faced a dilemma. At one extreme was the theory that every distinction drawn in a statute constituted discrimination in breach of section 15. On this theory, the structure of analysis developed in R. v. Oakes 5 for justification under section 1 (sufficiently important objective, rational connection to that objective, minimum impairment and proportionality) would be the analysis that would be applied to all section 15 challenges. At the other end was the position taken by 3 There exist four equalities under this guarantee; that is, s. 15 provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law 3. 4 Hogg, Peter W. Constitutional Law of Canada, 2011 Student Edition. Toronto: Carswell, Print. S R. v. Oakes [1986] 1 S.C.R

9 McLachlin J. who held that the only legislative distinctions that would amount to discrimination were those that were unreasonable or unfair. For McLachlin J., section 15 contained its own implicit requirement of justification, and the question whether a legislative distinction was justified or not would be determined by an assessment of its reasonableness or unfairness according to standards that the courts would have to develop within section 15 itself. 6 Both approaches, however, shared the reasonable assumption that all legislative distinctions are open to review under section 15. To be clear, section 15 does have significant scope; the listed grounds, though not exhaustive, point to personal characteristics of individuals that cannot easily be changed and which have often been the target of prejudice and stereotyping. This has proved to be a useful and far-reaching approach for specifying what forms of unequal treatment that are unfair and illegitimate. Moreover, the reference in subsection (2) the affirmative action clause to disadvantaged individuals or groups also suggests that the role of section 15 is not just to prohibit, but correct discrimination. These features of section 15 suggest that the proper role of the equality guarantee is not to eliminate all unfairness from our laws, but rather to eliminate discrimination based on immutable personal characteristics. Andrews v. Law Society of British Columbia was the first section 15 case to reach the Supreme Court of Canada. It was a challenge to the statutory requirement of the province of British Columbia that members of the bar had to be citizens of Canada. The Court held unanimously that this requirement was contrary to section 15, and by a majority that it was not saved by section 1. McIntyre J., writing for the unanimous Court 6 See Hogg, supra note 5, S. 55.6(b)

10 on the interpretation of section 15, rejected both the view that section 15 condemned all legislative classifications and that section 15 condemned unreasonable or unfair classifications, holding instead that there was a middle ground between the two positions, which was to interpret discrimination in section 15 as applying to only the grounds listed in section 15 and analogous grounds. The Court went on to hold that citizenship qualified as an analogous ground of discrimination. Andrews made clear that section 15 was a prohibition of discrimination, and that discrimination involved the denial of a benefit or imposition of a burden (i.e. disadvantage) on an individual as a result of an immutable characteristic that was either listed or analogous to those in section 15. The restriction of section 15 to enumerated and analogous grounds is now a permanent feature of the section 15 jurisprudence. Since Andrews, the Supreme Court has worked its way towards an understanding of section 15 based on the concept of human dignity as the underlying interest grounding claims of equality. In Law v. Canada (Minister of Employment and Immigration) 7, the Court added the new restriction: that discrimination involved an impairment of human dignity. Dignity began as an idea about the enumerated grounds given in section 15 and their relationship with one another 8 the idea being that the enumerated grounds are so tied to one s person that distinctions based on them affect one s dignity. Thus, in a sense, dignity was the criterion for the enumeration. This is illustrated in McLachlin J. s 7 Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R This position is illustrated in Miron v. Trudel, [1995] 2 S.C.R. 418 [Miron]. The idea being that enumerated grounds of section 15 are chosen because they have some link to a person s dignity that is, to be denied access to some benefit because of stereotypical application of presumed group characteristics (specifically those characteristics which define the grounds) is not to be treated with dignity. See also Denise Réaume on this: Réaume, Denise G., Discrimination and Dignity (2004). Anti-Discrimination Law, Part of the International Library of Essays in Law and Legal Theory, 2nd Series, Christopher McCrudden, ed., Hampshire: Ashgate Publishing, 2004, reprinted from (2003); Louisiana Law Review, Vol. 63, p 16. 6

11 description of the purpose of section 15 in Miron v. Trudel 9 as prevent[ing] the violation of human dignity and freedom by imposing limitations, disadvantages or burdens through the stereotypical application of presumed group characteristics rather than on the basis of individual merit, capacity, or circumstances 10. This linked the prohibited grounds of discrimination to dignity, suggesting that the grounds listed in section 15 were chosen because of their connection to some stereotype which falsely attributed negative characteristics to members of groups identified by these characteristics and, in turn, violated dignity. This also applied to the analogous grounds: a ground was analogous if and only if it was connected to the dignity of the claimant. The decision in Egan v. Canada 11, for instance, a case deemed a major victory for equality rights, connected dignity to the harm of discrimination on the basis of sexual orientation. Sexual orientation was thus recognized just as fundamental to persons as race or sex The Context of Equality Claims When discussing the wrongs of unequal treatment under section 15(1), it is necessary to first identify the context in which equality claims are made. Claims under section 15(1) are made in relation to any government action or program that allocates some good or opportunity to a certain individual or group, while denying other individuals or groups the same good or opportunity. Such schemes are necessarily predicated on legislative distinctions, which accord unequal treatment. Most often, it is government distributive schemes or programs that are challenged under section 15(1) (i.e. programs that distribute economic or social benefits of some kind or another). Many 9 Miron v. Trudel, [1995] 2 S.C.R Miron v. Trudel, supra note 10, at Egan v. Canada, [1995] 2 S.C.R

12 legislative schemes employ some sort of distinction and therefore engage section 15(1). For instance, government policies will often make legislative distinctions on the basis of personal characteristics or attributes that serve as a qualification for the benefit in question. Likewise, government schemes may treat citizens unequally in less explicit ways, by failing to consider the needs of a certain group or individual. It is crucial to note, however, that while unequal treatment serves as the basis for section 15(1) claims, it cannot be that all differential or unequal treatment constitutes a violation of the right to equality. As acknowledged by the Court in Andrews v. Law Society of British Columbia, claimants must show that differential treatment amounts to discrimination in order to be successful under section 15(1). This view that the harm of unequal treatment is more than simply inequality qua inequality is also supported by Sophia Moreau who states that: [n]o plausible theory of equality maintains that what is objectionable about unequal treatment is the mere fact that some individuals end up with more or less than others. Rather, such theories hold that unequal treatment is objectionable when, and to the extent that, this treatment is unfair. 12 With this understanding of equality, the obligation of the government is not to eliminate all types of unequal treatment, but rather to justify those distinctions that come under section 15(1) as fair or legitimate. 13 For the purposes of this paper, the pertinent question is, then, what makes certain types of treatment unfair or illegitimate? Put another way, what are the harms of unequal treatment, and why are they harmful? Responding to these and related questions will be the focus of the rest of this paper. 12 Moreau, supra note 3 at See R. v. Oakes, supra note 6. 8

13 1.3. Conclusion Thus far we have looked at section 15 as interpreted by the courts and the context in which equality claims have been made. We have seen that section 15 provides for every individual a guarantee of equality before and under the law, as well as the equal protection and equal benefit of the law without discrimination. While the Charter itself provides no guidance as to what it means for the government to treat its citizens as equals, nor what constitutes discrimination in breach of section 15, features of section 15, such as the enumerated and analogous grounds, suggest that the proper role of the equality guarantee is not to eliminate all unfairness from our laws, but rather to eliminate discrimination based on immutable personal characteristics. The Supreme Court later worked its way towards an understanding of section 15 based on the concept of human dignity as the underlying interest grounding claims of equality. As we will now see, many have questioned whether the concept of human dignity has the substantive content necessary to ascertain and delineate why certain types of unequal treatment are illegitimate and so I turn now to examine just that. That is, can the concept of human dignity help to conceptualize the wrongs of unequal treatment? 9

14 II. Human Dignity and Section 15 of the Charter Human dignity, while a central value guiding equality rights, has been charged for ambiguity and indeterminacy. In what follows, I will examine the past efforts of the Supreme Court of Canada to develop a substantive conception of equality based on the value of human dignity and argue that the legal test presented in Law v. Canada fails to make good use of the concept and that this has rendered the Court less able to recognise discriminatory instances in which the claimant has suffered a wrong. I will show that the Court has used dignity not in the objective sense but rather as a subjective concept, confining the analysis to the individual, and identifying a person s dignity with his or her feelings. My aim in this chapter is to defend the thesis that the concept of human dignity, understood objectively as involving autonomy and self-determination, can provide us with meaningful content that explains why certain types of unequal treatment are forms of discrimination and are thereby unfair and illegitimate. Human dignity in its application, I will argue, can help ascertain how equality is to be conceived, specified and realised under section 15 of the Charter. I will proceed in five sections. Section 1.1 will begin with a brief introduction of human dignity as it has emerged in the legal discourse. Section 1.2, will detail the philosophical foundations of human dignity. Section 1.3 will examine how human dignity has been presented and used in the Courts pre- and post- Law v. Canada. Section 1.4 will highlight the problems with the dignity interest, as used by the Courts. Finally Section 1.5 will explore my own interpretation of human dignity, one that, I argue, escapes the problems plagued by other conceptions.

15 II.1.1. Dignity and Equality Rights As we have seen, in Law v. Canada the Supreme Court of Canada issued a unanimous opinion, written by Justice Frank Iacobucci, that provided a new interpretation of section 15 of the Charter. The new consensus was that discrimination in section 15 involved an additional element to a distinction based on a listed or analogous ground that additional element was an impairment of human dignity. And though Iacobucci J., did not define human dignity, he did suggest four contextual factors that were to facilitate the inquiry. The four contextual factors are: (1) pre-existing disadvantage, vulnerability, stereotyping, or prejudice; (2) correspondence between the distinction and the actual needs, merits and circumstances of the members of the group affected by it; (3) whether the impugned provision has ameliorative purposes for a more disadvantaged group; and (4) the nature of the interest affected by the distinction. 14 There have been many criticisms of the concept of human dignity, but two predominate: first, the concept is vague and contentious members of the Supreme Court have often disagreed amongst themselves on the question of whether the impugned law impairs the human dignity of the claimant; second, it is burdensome to claimants as it introduces a new element to section 15 thereby establishing yet another barrier to finding a violation of section 15(1). 15 Indeed, scholarly disagreement about the foundations of human dignity and about its substantive meaning when applied to practical cases attests to the principle s vagueness and indeterminacy. This ambiguity is only made more problematic when dignity is elevated from its status as a moral value to that of a judicially enforceable legal test, as was established in Law. 14 Law, supra note 8, at para See page 30 for more on these criticisms. 11

16 The court abandoned the use of dignity as a legal test in R. v. Kapp 16, a 2008 Supreme Court case which found that a communal fishing license granted exclusively to Aboriginals did not violate section 15 of the Charter. It might be thought, therefore, that the Supreme Court rightly has given up on human dignity as a principle guiding human rights. 17 However, in this chapter, I will suggest that we can and should retrieve the valuable content inherent in human dignity, though not before we assess what is specifically useful about the concept. While Justice Iacobucci was simply content that there can be different conceptions of what dignity means, 18 without any examination of these different conceptions, I would suggest that, to the contrary, it is crucial that we closely examine the various accounts of dignity to specify a determinate meaning for the term. Thus, I turn first to the philosophical foundations of human dignity to help elucidate the conceptual problems within it and shore up the valuable content, which I believe is useful to a section 15 analysis. II.1.2. Philosophical Foundations of Human Dignity Human dignity has been a ubiquitous theoretical justification for human rights in Canada. As a legal value, human dignity is most commonly associated with post-second World War international legal developments. 19 As a reaction to the atrocities committed by the Nazis in World War II, the global community united around the belief in the equal 16 R. v. Kapp, [2008] 2 S.C.R. 483, 2008 SCC Thomas M.J. Bateman notes that Justice L Heureux-Dube, at the time of Law v. Canada, was the leading equality rights advocate on the court, and she retired in Thus, he suggests that L Heureux- Dube largely influenced the adoption of human dignity in the Law test and after her retirement in 2002, Justice Beverly McLachlin, who was promoted to Chief Justice in 2000, may have exercised influence in favor of a more restrained approach to Law s dignity test. See: Bateman, Thomas M. "Human Dignity's False Start in the Supreme Court of Canada: Equality Rights and the Canadian Charter of Rights and Freedoms." The International Journal of Human Rights 16.4 (2012): Print. 18 Law, supra note 8, at para Bateman, supra note 18, p 2. 12

17 and inalienable worth of all members of the human family. The Universal Declaration of Human Rights is a statement of the commitment to protecting this fundamental human value. Human dignity is mentioned in the 1945 United Nations Charter, the preamble of the two 1966 Covenants emanating from the Universal Declaration, and virtually all human-rights declarations, conventions, and international court statutes. Although the concept does not explicitly appear in the Canadian Constitution, the concept has entered through judicial construction, engulfing Charter decisions and acting as a justificatory rhetorical device. As Justice MacIntyre stated in Kapp, There can be no doubt that human dignity is an essential value underlying the section 15 equality guarantee. In fact, the protection of all the rights guaranteed by the Charter has as its lodestar the promotion of human dignity. 20 Certainly, the idea of human dignity is rhetorically compelling. The Court is guided by values and principles essential to a free and democratic society and respect for the inherent dignity of the human person is a central value that highlights our commitment to social justice and equality. This is not to say, however, that there is a clear consensus on the idea s meaning. 21 Ranging from ancient stoicism through Christian theology to Kantian ethics and liberal thought, human dignity emanates from a myriad of intellectual origins. Though all accounts specify dignity as features of humanity, they do so in various ways. In what follows, I outline and briefly examine what I take to be the three most distinct and notable accounts of human dignity. 20 R. v. Kapp, supra note 16, at para Bateman, supra note 18, p 2. 13

18 II Dignity Grounded in Rights Dignity as rights-grounding derives from the Kantian tradition, which highlights reason as a central and inimitable human quality. Kant offers us an understanding of autonomy as the possession of practical reason, which gives its possessor the ability to think and decide for herself what to value, what to do, and how to live. 22 The emphasis here is on the intrinsic worth and dignity of all rational beings. To say that we should respect autonomy, or that we should respect people as autonomous beings, is to say that we should take this feature of persons as calling for a response, limiting our behaviour toward them in certain ways, and demanding types of behaviour in others. For Kant, respecting autonomy involves respecting people s ability to direct their own lives, refraining from interfering with their choices, and from imposing burdens on them that they would not themselves endorse. As autonomous beings we are able to act as selflegislatures. We are able to subject ourselves, not to the will of others, but rather to the requirements of right reason, which we can discover for ourselves using our own intellect. Thus, respect for autonomy urges us to let people decide for themselves how to lead their lives to interfere would bespeak a failure to appreciate the value of autonomy and one s power to generate reasons. On this rights-grounding account, how one uses one s rights is not central. Rather, dignity is linked to the making of autonomous choices, not to the choices one makes. On the Kantian understanding then, dignity is an unchanging and supreme value that inheres in every human being; that is, in Kant s words, the idea of a human being s unconditional and incomparable worth Immanuel Kant. Groundwork of the Metaphysics of Morals. Ed. Mary J. Gregor. Cambridge, U.K.: Cambridge UP, Print. 23 Paraphrased in: Moreau, Sophia, The Wrongs of Unequal Treatment in Fay Faraday, Margaret Denike, and M. Kate Stephenson, eds. Making Equality Rights Real: Securing Substantive Equality under the 14

19 For Sophia Moreau, however, because this worth is unconditional and thus independent of the individual s circumstances, or the extent to which she is actually shown respect by others, it follows that one s dignity cannot be diminished by others disregard for it. Hence, even if an individual is discriminated against, this cannot diminish her dignity in the objective sense, as she will always have a claim to concern and respect for her supreme worth. For Moreau, then, the objective conception of dignity, on its own, does not have sufficient content to explain the precise nature of the wrongs that are done to individuals who are not treated with equal concern and respect. That is, because the idea that all human beings simply have unconditional worth does not tell us what kinds of treatment fail to show proper consideration for that worth. The abstract ideal of equal concern and respect for dignity, Moreau argues, must therefore be given content by a substantial conception of what kinds of treatment violate human dignity. 24 II Dignity Grounded in Status Dignity as status-grounding takes a comprehensive look at humanity itself as an inalienable status which all persons possess and which brings obligations. As a result of one s status as a human being, one has certain duties to oneself and to others. On this account, then, dignity acts as a constraint on an agent s exercise of freedom that is to say, one s freedom is limited by one s status as a human being. Thomas M.J. Bateman illustrates this nicely, arguing that while prostitution on the rights-grounding account may be consistent with human dignity if it is freely chosen (rather than undertaken for survival), on the status-grounding view, it may nevertheless be a violation of one s duty to humanity since it is a form of degrading one s person. Charter (Toronto: Irwin Law, 2006) p 295. Original citation: Immanuel Kant, Groundwork for the Metaphysics of Morals, trans. James W. Ellington (Indianapolis: Hackett, 1993) at s. II, We will see this in detail in Chapter 2. 15

20 There have also been some efforts to synthesise the status-grounding view with rights-grounding accounts. George Kateb, for example, takes dignity to be an existential value defining what it is to be human. The human on his account includes, developed or distinctive selfhood, autonomy, authenticity, freedom, equality, power for its own sake, virtues for their own sake, perfectionism of character or style of life, honor, glory and fame 25. These features thus make up people s unique capacity to be agents with purposes. 26 Bateman suggests that while Kateb s attempt to combine the rightsgrounding and status-grounding views is compelling, it still leaves open questions on the limits that status places on rights. That is, are acts of freedom always dignified and can one act in a way to deny one s own humanity? Part of the problem, Bateman suggests, is determining what forms of human conduct are substantively caught by the idea of dignity. Actions can have various degrees of harm and so we might ask whether dignity seeks to establish a floor of conduct below which no deleterious action shall be countenanced; or [whether it reaches for] the ceiling, protecting humans from relatively minor affronts? 27 II Dignity Grounded in Emotion Finally, dignity grounded in emotion identifies what one feels as the litmus test of dignity. Feelings of indignation, for instance, signal an affront to human dignity. Thus, Bateman argues, by means of an emotional connection with the fate of others, we become aware of the indignity done to them by imagining ourselves in their position and 25 George Kateb, Human Dignity (Cambridge, MA: Belknap/Harvard University Press, 2011). P 12. See also: Bateman, supra note 18, p Kateb, supra note 26, at p 38. See also: Bateman, supra note 18, p Bateman, supra note 18, p 4. 16

21 then reflecting on our own reaction to that condition. 28 In historian Lynn Hunt s words, you know the meaning of human rights because you feel distressed when they are violated. 29 This account is largely based on the Humean tradition in which, morality is determined by sentiment 30. That is, while Kant seeks to ground morality in reason, David Hume, conversely, takes the emotivist position, seeking to preserve passion as taking priority. Hence, according to Hume, reason is and should be a slave of passions. II.1.3. Dignity And The Law Test Now that we have looked at some of the philosophical underpinnings of human dignity, let us turn to how the concept has been presented and used by the courts. The Supreme Court of Canada in R. v. Oakes declared that, when applying section 1 to rights violations, it must be guided by principles essential to a free and democratic society, one of which is respect for the inherent dignity of the human person. 31 Likewise, Justice McIntyre described the purpose of section 15 in Andrews v. Law Society 32 as that which ensures that all individuals are recognized at law as human beings equally deserving of concern, respect and consideration. The power of human dignity is such that some have suggested it be the subject of a right itself. However, this approach has been rejected by the courts, finding human dignity rather to be the basis for Charter rights such as equality. In Blencoe v. British Columbia (Human Rights Commission) 33, the court held that dignity has never been recognized by this Court as an independent right but rather has been 28 Bateman, supra note 18, p Lynn Hunt, Inventing Human Rights: A History (New York:W.W. Norton, 2007), 214; see also Bateman, supra note 18, p David Hume, An Enquiry Concerning the Principles of Morals (Amherst: Prometheus Books, 2004 [1751]), R. v. Oakes, supra note 6, at para Andrews v. Law Society of British Columbia,, supra note 2, at Blencoe v. British Columbia (Human Rights Commission) [2000] 2 S.C.R

22 viewed as finding expression in rights, such as equality, privacy or protection from state compulsion 34. Thus, with the rejection of dignity as a free-standing right and the adoption of the concept as a tool for equality jurisprudence, the courts moved to a new section 15 interpretation in Law v. Canada, finding dignity to have the status of a legal rule. That is, the judicial interpretation of discrimination under section 15 was as follows: (1) The challenged law imposes (directly or indirectly) on the claimant a disadvantage (in the form of a burden or withheld benefit) in comparison to other comparable persons; (2) The disadvantage is based on a ground listed in or analogous to a ground listed in s. 15; and (3) The disadvantage also constitutes an impairment of the human dignity of the claimant. 35 Thus, the claimant who persuades the Court of these three elements is entitled to a finding of discrimination, meaning that the impugned law is in breach of section 15. More than a legal rule, the decision in Law held the prevention of the violation of human dignity to be the purpose of section 15. Law provides a telling statement of this purpose: It may be said that the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration. Legislation which effects differential treatment between individuals or groups will violate this fundamental purpose where those who are subject to differential treatment fall within one or more enumerated or analogous grounds, and where the differential treatment reflects the stereotypical application of presumed group or personal characteristics, or otherwise has the effect of perpetuating or promoting the view that the individual is less capable or less worthy of recognition or value as a human being or as a member of Canadian society Ibid., at para Hogg, supra note 5, at S. 55.8(a). 36 Law, supra note 8, at para

23 In Law, the court considered a claim of age-based discrimination against the federal government for tailoring Canada Pension Plan survivor benefits by age. The impugned legislation dictated that the younger the survivor, the smaller the benefit. Nancy Law, a widow at 30 years of age, failed to meet the requirements for the survivor s benefit: she had no dependents, was not disabled, and was under the age of 35. The court took the opportunity in Law to re-articulate the section 15 test and consequently created the three-step analysis. First, Ms. Law was to establish that she had received differential treatment, that is, she was to demonstrate that she had been denied a benefit that others received. Second, she was to show that the differential treatment occurred on an enumerated or analogous ground. Finally, she was to demonstrate that this unequal treatment was unfair, or amounted to discrimination which, according to the Court in Law, involved showing that her dignity was infringed, in the sense that a reasonable person in her position would have been made to feel inferior. For the purpose of this Chapter, my focus will remain on the role of dignity within the Law test. In this regard, Justice Frank Iacobucci declared that the specific, albeit non-exhaustive definition was drawn from previous s. 15(1) jurisprudence: [The] equality guarantee in s. 15(1) is concerned with the realization of personal autonomy and self-determination. Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances, which do not relate to individual needs, capacities, and merits. It is enhanced by laws, which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a 19

24 particular law. 37 Perhaps recognising the lack of clarity in his definition of dignity, Justice Iacobucci sought to supplement the definition with the four contextual factors 38, which were to provide guidance to the courts in determining whether the claimant s dignity had been harmed. Again, the contextual factors are (1) pre-existing disadvantage, vulnerability, stereotyping, or prejudice; (2) correspondence between the distinction and the actual needs, merits and circumstances of the members of the group affected by it; (3) whether the impugned provision has ameliorative purposes for a more disadvantaged group; and (4) the nature of the interest affected by the distinction. 39 To be sure, Justice Iacobucci did stress that these factors were neither necessary nor exhaustive in determining a violation of human dignity and cautioned against their use as a formal checklist. The connection between the contextual factors and the dignity interest, however, has never been specified and as a result, subsequent cases have done exactly what was advised against 40 that is, the contextual factors have been applied as a formal test and cases have been decided on the basis of one or more of these factors, rather than an overall analysis of the impact of legislation on dignity itself. Consequently, under the term dignity, the court unanimously dismissed Nancy Law s case. The court held, and with little evidence, that [r]elatively speaking, adults under the age of 45 have not been consistently and routinely subjected to the sorts of discrimination faced by some of Canada s discrete and insular minorities Law, supra note 8 at para. 53. (Emphasis added) 38 Law, supra note 8 at para Law, supra note 8, at para Réaume, supra note 9, at p. 17, Law, supra note 8, at para

25 II.1.4. Problems with Dignity in Law: An Emotion-Grounding Account Although the deployment of the idea of dignity in the Charter jurisprudence is in many ways ground-breaking in its recognition of the far-reaching impact of unequal treatment, the interpretation of dignity has some significant problems. In particular, the concept of dignity adopted in Law is chiefly focused on the emotions-grounding account of dignity, of which we saw earlier that is, on the subjective feelings of the claimant. Justice Iacobucci s associates human dignity with feelings of self-respect and self-worth and with physical and psychological integrity and empowerment ; thus, dignity becomes an evaluation of what the court determines a reasonable claimant would legitimately feel when treated in a certain way by the impugned law. Determining an affront on human dignity based on the feelings of the claimant amounts to treating an affront to dignity as an emotion or feeling. 42 Rather than reducing harm to dignity as a matter of hurt feelings, I would suggest, along with Denise Réaume, that the dignity interest should be understood as an independent objective harm. To be sure, discrimination will absolutely affect the personal subjective feelings of those adversely affected, but to reduce the section 15(1) Charter guarantee to a protection of emotional harm would be a trivial interpretation of the equality rights protected by the Charter. It is not the job of section 15(1) of the Charter to protect persons from humiliation. As Réaume suggests, Feelings of worthlessness may be a common symptom of disrespectful treatment and relevant diagnostically, but the evil to be prevented or remedied is the attribution of unworthiness. 43 Moreau adds that the real rationale for using the perspective of the reasonable person is to ensure that the 42 Réaume, Denise G., Law v. Canada (Minister of Employment and Immigration) (2006) 18 Can. J. Women L. 143, p Ibid. 21

26 courts assess not just whether the claimant has come to feel inferior, but whether this feeling is the direct result of unfair treatment. Herein lies the problem, Moreau contends: unfairness is not demonstrated simply by the individual s feelings but rather must appeal to some other substantive conception of what makes unequal treatment into a wrong against the individual. 44 What is more, this emotion-grounded account of dignity acts to reduce the value in dignity to an experiential good, 45 identifying inequality within the individual instead of in the broader coercive social structures of society. Indeed, it is the coercive social structure and the individual relations (and transactions) within the basic structure that have the most profound effects on the individual. 46 If section 15 s purpose of providing substantive equality 47 is to have any critical bite, the analysis must be focused towards identifying concrete, objective harm. It must look to unequal social structures of power and their impact on the needs, opportunities, flourishing and overall well-being of individuals in society. Section 15 of the Charter must protect every individual as objectively valuable and equally deserving of concern, respect and consideration. 48 The purpose is not to protect subjective feelings of empowerment and esteem. An impugned legislation may nonetheless have discriminatory effects regardless of whether the person who is adversely affected feels demeaned or devalued. Similarly, a law or policy may be 44 Moreau, supra note 3, p Ibid. 46 See: A Theory of Justice, Revised Edition (Cambridge: Harvard University Press, 1999), p. 7. The institutions that make up the basic structure, according to Rawls, include [t]he political constitution the legally recognized forms of property, and the structure of the economy as well as the family in some form (Justice as Fairness: A Restatement (Cambridge: Harvard University Press, 2001), p. 10). 47 The courts have stated that the purpose of section 15 is not to pursue formal equality, but substantive equality, a concept with has yet to be defined or enumerated by the courts. The courts acknowledgment of substantive equality only addresses the fact that treating likes alike can in fact produce inequalities and differential treatment will not always result in inequality. 48 Andrews v. Law Society of British Columbia,, supra note 2, at para

27 in violation of section 15(1) even if, as Réaume writes, it fails to bring the targets down in their own estimation. 49 Again, this is not to deny that objective wrongs will have a negative impact on personal feelings or that discriminatory treatment will generally involve feelings of lesser worth and a diminished sense of self-respect this most certainly will be true. My argument here, however, is simply that objective wrongs should not be determined on this basis. Eldridge v. British Columbia 50, a pre-law decision where legislation that failed to provide sign language interpreters to deaf persons in hospitals was found in violation of section 15(1), demonstrates my argument. Indeed denying an individual an effective voice to comprehend and then make decisions regarding their medical treatment would affect one s feelings of self-worth and respect. However, rather than focusing on how such treatment affects one s feelings, the Court directed their attention on the persistent social and economic disadvantage faced by the disabled. 51 The basis for finding a violation of section 15(1) in this case was that denying this service resulted in deaf persons receiving a lower standard of medical treatment. Thus, Eldridge provides a powerful illustration of why it is the objective conceptions of the wrong that must be determinative of the discrimination issues. Not only are feelings of self-worth and self-respect much too subjective to be meaningfully guarded by the law, but allowing the courts to play the role of the final arbitrator of claimants feelings is a risky business for it can imply that what is at issue is sensitivity on the part of the victim, rather than the violation of his or her rights. Even the 49 Réaume, supra note 45, p 162 at para Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R Ibid., at para